Love in the time of Covid-19
Oct 01, 2020
Whilst there have been reports that lockdown led to some couples separating, this experience has also brought some couples closer together. Those who have commenced a new relationship recently, or have taken an existing relationship to the next level of cohabitation or engagement, have been affectionately dubbed “corona-couples” and for some, marriage will be the next step.
A wedding is a lovely celebration but the legal relationship it gives rise to, with financial ramifications on divorce, is often forgotten, ignored or misunderstood. Also frequently overlooked are the pre-emptive steps available, in the form of nuptial agreements, which can give a couple the opportunity for greater autonomy over how their assets should be divided if their marriage breaks down.
The Court has a wide discretion as to how to divide a couple’s assets on divorce. It will apply the factors set out by statute which include consideration of “all the circumstances of the case”. Where there is a nuptial agreement, whilst it cannot override the Court’s discretion and so is not binding per se, it is a circumstance the Court must consider and it can impact or even determine how that discretion is exercised. Hence the popularity of such agreements is rising.
A pre-nuptial agreement is entered into before marriage. The Jersey Law Commission report on Divorce Reform in 2015 recommended that such agreements should become binding under our law provided certain safeguards are met, including that the parties must have exchanged financial disclosure and had the benefit of independent legal advice before entering into the agreement, which should be executed in good time in advance of the wedding (at least 42 days before the ceremony). Although this recommendation is yet to be made law here, meeting this criteria will render it more likely that the agreement will be upheld by the Court.
A post-nuptial agreement is entered into after marriage. Like pre-nups, they cannot be binding but will be a factor for the Court’s consideration and may be given due weight or upheld if the relevant safeguards are met. Arguably a post-nup may be more persuasive because it is entered into without the pressure or distraction of the impending wedding day.
A post nuptial agreement can be helpful where a couple run out of time before the wedding day but still wish to set out their intentions regarding financial matters should they ultimately divorce. They can also provide couples who have been through slightly rocky times but who have reconciled, with comfort as to what may happen should they find themselves in choppy marital waters once more.
History has shown that during times of upheaval such as war or civil unrest, relationships can be put under pressure but they can also flourish. The Baby Boomer Generation is testament to that. For those loved up corona-couples who have recently become engaged or married, thinking about how to protect their assets is unlikely to be top priority. Arguably it should be today, when so much is uncertain and people are making such commitments later in life, perhaps when they have already built up an asset pot or may be embarking on a second marriage and wish to protect their children’s inheritance.
Whilst there is no mask that will protect our corona-couples from the heartache of a breakup, a nuptial agreement may afford them with some financial protection should their relationships not stand the test of time.